3.1 Essential Legal Terminology
Legal terminology serves a precise function - it conveys specific meanings that have been refined through centuries of judicial interpretation. Understanding these terms is essential for effective drafting.
Core Contract Terms
| Term | Meaning | Usage |
|---|---|---|
| Consideration | Something of value exchanged | Required for valid contract formation |
| Indemnity | Promise to compensate for loss | "Party A shall indemnify Party B against..." |
| Warranty | Guarantee of fact or condition | "The Seller warrants that..." |
| Representation | Statement of past/present fact | "The Buyer represents that..." |
| Covenant | Promise to do or not do | "The Licensee covenants to..." |
| Condition Precedent | Event that must occur first | "Subject to the following conditions..." |
| Force Majeure | Unforeseeable circumstances | Excuses performance during events beyond control |
Litigation Terms
- Plaintiff/Petitioner: Party initiating the case
- Defendant/Respondent: Party against whom case is brought
- Cause of Action: Legal ground for bringing suit
- Jurisdiction: Court's authority to hear the matter
- Limitation: Time period within which suit must be filed
- Injunction: Court order restraining an action
- Decree: Final determination of rights by court
- Ex parte: Proceeding with only one party present
A "term of art" is a word or phrase that has a specific legal meaning different from its ordinary meaning. For example, "consideration" in contract law does not mean thinking about something - it means value exchanged. Always use terms of art precisely.
3.2 Latin Phrases in Legal Documents
While plain language drafting is encouraged, certain Latin phrases remain in common use because they precisely capture legal concepts that would require lengthy explanation in English. Know when to use them and what they mean.
Commonly Used Latin Phrases
While Latin phrases are acceptable, always ensure your audience understands them. In consumer contracts or documents for non-lawyers, consider using plain English alternatives or providing definitions.
3.3 Plain Language Drafting
Plain language drafting aims to communicate legal concepts clearly and simply without sacrificing legal precision. It is increasingly mandated in consumer contracts and encouraged in all legal writing.
Principles of Plain Language
- Use everyday words: "begin" instead of "commence," "end" instead of "terminate"
- Write short sentences: Aim for 20-25 words per sentence
- Use active voice: "The Buyer shall pay" not "Payment shall be made by the Buyer"
- Avoid double negatives: "You may" not "You shall not be prohibited from"
- Use lists and tables: Break complex information into digestible formats
- Define technical terms: Explain any necessary jargon
"Notwithstanding any other provision herein contained to the contrary, in the event that the Party of the First Part shall fail to make payment of any amount due and owing hereunder within the time period hereinbefore specified, the Party of the Second Part shall be entitled to terminate this Agreement forthwith."
"If the Buyer does not pay any amount due under this Agreement within 30 days of the due date, the Seller may terminate this Agreement immediately."
Words to Avoid
| Avoid | Use Instead |
|---|---|
| Herein, hereof, hereto | In this agreement, of this agreement |
| Whereas | Background (in recitals) |
| Witnesseth | Omit entirely or use "Background" |
| Aforementioned | That, the, this |
| Shall | Must, will (where appropriate) |
| Prior to | Before |
| Subsequent to | After |
While plain language is encouraged, some courts and authorities still expect traditional legal language in certain documents (especially pleadings). Always balance readability with the expectations of your specific forum.
3.4 Defined Terms
Defined terms are words or phrases given a specific meaning for the purposes of a document. They are essential tools for achieving clarity and consistency in legal drafting.
Rules for Defined Terms
- Capitalize defined terms: "Agreement," "Effective Date," "Confidential Information"
- Define at first use or in definitions section: Be consistent in approach
- Use the exact defined term: If you define "Services," don't later say "services" or "the work"
- Don't over-define: Only define terms used multiple times or needing clarity
- Avoid circular definitions: Don't use the term being defined in its definition
1. DEFINITIONS
1.1 "Agreement" means this Services Agreement together with all Schedules attached hereto.
1.2 "Confidential Information" means all information disclosed by one party to the other that is marked as confidential or that reasonably should be understood to be confidential given the nature of the information.
1.3 "Effective Date" means the date first written above.
1.4 "Services" means the consulting services described in Schedule A.
Common Defined Terms
- Parties: "Company," "Client," "Seller," "Buyer," "Licensor," "Licensee"
- Time: "Effective Date," "Term," "Renewal Period," "Business Day"
- Subject Matter: "Services," "Products," "Work," "Deliverables"
- Money: "Fees," "Payment Terms," "Taxes"
- Protection: "Confidential Information," "Intellectual Property," "Personal Data"
Create a definitions checklist for your practice. Before finalizing any document, verify that (1) every defined term is actually used, (2) every capitalized term is defined, and (3) defined terms are used consistently throughout.
Key Takeaways
- Legal terminology: Use precise terms of art correctly - they have specific legal meanings
- Latin phrases: Know them but use sparingly; prefer plain English when possible
- Plain language: Write simply without sacrificing legal precision
- Defined terms: Use consistently and capitalize throughout the document
- Balance traditional legal language with readability for your specific audience